This case now comes up on petitioner's motion for relief from judgment under Red.R.Civ.P. 60(b) filed on January 27, 1992. A brief history of the prosecution of this proceeding will be helpful.

1. On April 24, 1991, petitioner filed a motion for a protective order under Trademark Rule 2.120(d)(1) and a motion for an extension of trial dates. Petitioner requested that petitioner's testimony period be reset to close on July 19, 1991.

2. On June 14, 1991, the Board granted petitioner's motions. Petitioner's testimony period was set to open on June 19, 1991 and was set to close on July 19, 1991.

3. On August 12, 1991, respondent filed a motion to dismiss the petition for cancellation under Trademark Rule 2.132(a) on the ground that petitioner failed to take any testimony or offer any other evidence. Petitioner filed a brief in response to respondent's motion and a motion to reopen petitioner's testimony period.

4. On October 30, 1991, the board granted respondent's motion to dismiss the petition for cancellation under Trademark Rule 2.132(a) and denied petitioner's motion to reopen petitioner's testimony period. The petition for cancellation was dismissed with prejudice.

Petitioner argues that its motion for relief from judgment should be granted because:

1. Petitioner is an innocent victim of its previous counsel's gross neglect of her responsibilities and concealment from petitioner of critical events in this proceeding.

2. Petitioner acted promptly to file its motion for relief from judgment when petitioner became aware of the order of dismissal.

3. Respondent will not be prejudiced if the motion is granted.

4. Petitioner has a meritorious claim.

5. This case should be decided on the merits.

According to petitioner, petitioner's previous counsel neglected her responsibility to protect petitioner's interest and then concealed events from petitioner, thereby depriving petitioner of the ability to take corrective action. Petitioner maintains that its former counsel failed to keep petitioner apprised of the status of this proceeding even after petitioner specifically requested status information. Petitioner submitted the affidavit of Judith Zakens, an attorney on the legal staff of petitioner who was responsible for monitoring the progress of petitioner's dispute with respondent. Ms. Zakens asserts facts that may be summarized as follows:

1. Petitioner retained a reputable law firm with experience in trademark law and practice before the Board to represent petitioner in its dispute with respondent. The law firm had done other work for petitioner and petitioner was satisfied with the quality of the services rendered by the law firm.

2. Zakens requested that counsel keep Zakens informed about the status of this proceeding.

*2 3. Counsel did not inform petitioner that petitioner's trial dates had been reset to open on June 19, 1991 and reset to close on July 19, 1991.

4. Counsel did not inform petitioner that counsel failed to take any testimony or offer any other evidence; that respondent filed a motion to dismiss the petition for cancellation under Trademark Rule 2.132(a); or that counsel filed a brief in opposition to respondent's motion and a motion to reopen petitioner's testimony period.

5. On September 15, 1991, Zakens called counsel for a status report. At that point, counsel informed Zakens of respondent's motion under Trademark Rule 2.132(a) and petitioner's motion to reopen petitioner's testimony period, and that these motions were pending. Zakens specifically instructed counsel to keep her informed about the status of the proceeding.

6. Counsel failed to inform Zakens that the Board granted respondent's motion to dismiss on October 30, 1991.

7. In December, 1991, Zakens called counsel for a status report. Counsel never returned Zakens' telephone calls.

8. In the beginning of January, 1992, petitioner retained the law firm of Kirkland & Ellis to represent petitioner in this matter.

9. Zakens first learned, on January 13, 1992, of the possibility that this proceeding might have been dismissed, and confirmed that fact on January 15, 1992.

10. On January 27, 1992, petitioner filed a motion for relief from judgment.

Petitioner argues that petitioner's motion for relief from judgment should be granted under Fed.R.Civ.P. 60(b)(1) because petitioner is an innocent client who relied on the care and vigilance of its counsel and petitioner's neglect was excusable. Petitioner also argues that petitioner's motion for relief from judgment should be granted under Fed.R.Civ.P. 60(b)(6) on the ground that petitioner has shown exceptional circumstances because petitioner is an innocent client who was victimized by an attorney who acted with gross neglect and concealed facts.

Petitioner asserts that it is not aware of any prejudice that would result if this motion is granted beyond that which is suffered by a party who loses a quick victory.

Petitioner argues that it has a meritorious claim because petitioner has priority of use; that petititioner's marks are strong and famous marks, entitled to a broad scope of protection; and that petitioner has used or licensed its marks on a wide range of products.

Finally, petitioner argues that this case was not decided on the merits; rather the decision was based on petitioner's unknowing failure to take testimony.

In opposition to petitioner's motion for relief from judgment, respondent argues that petitioner was not an innocent victim of its counsel's neglect. Respondent asserts that petitioner was represented by in-house counsel who was familiar with Board practice; that in-house counsel could have called the Board to determine the status of the proceeding; that in-house counsel waited five months, from April until September, to call its attorney for a status inquiry and then waited three months, from September until December, to call for a subsequent status report.

*3 Respondent argues that petitioner's counsel never misled petitioner because counsel never told petitioner that the proceeding was still pending after the petition for cancellation was dismissed.

Respondent argues that the Board already decided that petitioner's conduct does not meet the standard of excusable neglect when the Board granted respondent's motion to dismiss the petition for cancellation under Trademark Rule 2.132(a) and denied petitioner's motion to reopen petitioner's testimony period.

Respondent argues that it would be prejudiced by the granting of petitioner's motion because respondent would have to expend time and resources to defend this petition for cancellation.

Finally, respondent claims that petitioner does not have a meritorious claim because the goods of the parties are dissimilar.

Petitioner filed a reply brief. Petitioner argues that because of its past experience with the Abelman firm, and because the parties were involved in discovery motion practice, petitioner had no reason to believe that the proceeding was not in good order from April until September. For the period of September through December, petitioner asserts that it had no reason to believe that counsel would not inform petitioner of the Board's decision on respondent's motion to dismiss after petitioner specifically asked counsel to keep petitioner informed. Petitioner also argues that the expense of litigation is not a cognizable prejudice and that respondent has not shown that it will be unable to present its case.

Petitioner's motion for relief from judgment is well taken. Fed.R.Civ.P. 60(b) provides the following:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... (6) any other reason justifying relief from the operation of judgment.

The neglect of the attorney is generally treated as the neglect of the party. Link v. Wabash Railroad, 370 US 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). However, Link did not involve a motion for relief from judgment so that the application of Fed.R.Civ.P. 60(b) was not involved.

*4 In our view this case turns on whether petitioner's counsel was grossly negligent and whether petitioner exercised due diligence. The circumstances set forth by petitioner support petitioner's assertions that petitioner is an innocent victim of its previous counsel's gross neglect and concealment of critical facts. Petitioner retained a reputable law firm that petitioner had previously found rendered satisfactory representation. Petitioner made reasonable inquiries about the status of the proceedings. Petitioner had no reason to believe that counsel would provide anything other than proper representation. Petitioner's counsel failed to prosecute petitioner's case, failed to keep petitioner apprised of the status of the proceeding and concealed critical facts from petitioner.

To establish that it has a meritorious claim, a party seeking relief from judgment must show that there is some possibility that the outcome after a full trial would be different from the result achieved by the dismissal. Augusta Fiberglass, Inc. v. Fodor Contracting Corp., supra. See also, Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2697 (1991). [FN1] In the present case, petitioner has submitted a petition for cancellation which clearly is not frivolous in nature. In our opinion, this petition for cancellation is sufficient, in and of itself, to show, for purposes of the Fed.R.Civ.P. 60(b) motion, that petitioner has a meritorious claim. Cf.: Fred Hayman Beverly Hills Inc. v. Jacques Bernier Inc., 21 USPQ2d 1556 (TTAB 1991). Moreover, in support of its motion, petitioner has submitted evidence, namely, an affidavit and a number of exhibits, bearing on petitioner's long use of its mark, numerous registrations, and use and licensing of the marks in connection with a wide variety of products. This additional showing further confirms our conclusion that petitioner has a meritorious claim, that is, that there is indeed a possibility that the outcome of this case after a full trial would be different from the result achieved by the dismissal.

Respondent has not shown that it would be prejudiced by granting petitioner's motion.

In view thereof, petitioner's motion for relief from judgment is granted.

On February 21, 1992, petitioner filed a motion to suspend proceedings pending the final determination of a civil action between the parties in U.S. District Court for the Southern District of Florida, Civil Action No. 92-03430 CIV-NESBITT. A review of the complaint in the civil action indicates that a decision by the district court will be dispositive of the issues in this proceeding. In fact, petitioner has asked the court to cancel respondent's registrations.

In opposition to petitioner's motion to suspend proceedings, respondent argues that respondent is not engaged in a civil action. [FN2] Respondent argues that it has not been properly served and that respondent has filed a motion to dismiss the complaint under Fed.R.Civ.P. 12(b)(5) on the ground of insufficiency of process.

*5 In a reply brief, petitioner argues that respondent's motion to dismiss the civil action under Fed.R.Civ.P. 12(b)(5) is moot because counsel for respondent accepted service of the complaint for respondent.

Petitioner's motion to suspend proceedings is well taken. A decision by the district court will be dispositive of the issues before the Board. Petitioner's motion to suspend proceedings is granted.

Proceedings are suspended pending the final determination of the civil action between the parties. Within twenty days after the final determination of the civil action, the interested party should notify the Board so that this case may be called up for appropriate action.

J.D. Sams

J.E. Rice

E.J. Seeherman

Members, Trademark Trial and Appeal Board

FN1. The case and treatise cited involve setting aside a default judgment. However, a dismissal of the petition for failure to prosecute under Trademark Rule 2.132 is analogous to a default situation in that the plaintiff rather than the defendant failed to take the appropriate action. The discussion regarding establishing a meritorious defense in support of setting aside a default judgment is applicable to establishing a meritorious claim in support of setting aside a judgment for failure to prosecute under Trademark Rule 2.132.

FN2. In opposition to petitioner's motion, respondent also argues that the Board has already issued a final judgment disposing of this proceeding and that petitioner's motion for relief from judgment is potentially dispositive of this proceeding and should be considered first. In view of the Board's decision granting petitioner's motion for relief from judgment, these arguments will be given no further consideration.